Synopsis: U.S. Employers and WC Managers Should Carefully Continue Blanket Post-Accident Drug Tests Under OSHA’s “Reasonable Reporting Procedure” rule—The Times They Are A-Changing.

Editor’s comment: In our respectful view, all of the aggressive and business-unfriendly stuff under the current OSHA administration may be “Trump-ed.” The Wall Street Journal reported we may see a Reagan-esque effort to use a regulatory “SWAT” team to block the Obama-led proliferation of regulations and get rid of the current “lame-duck” group of administrators. Take a look at http://www.wsj.com/articles/a-trump-swat-team-for-regulation-1480888354

Under the Obama-ites, starting last week on December 1, 2016, what I feel is the outbound Occupational Safety and Health Administration started enforcing another new regulation requiring employers

(1) To have a “reasonable procedure” for employees to report work-related injuries and illnesses, and

(2) Not to magically “discriminate” or retaliate against employees who report such injuries or illnesses.

In our view, their main issue is “blanket” post-accident drug testing isn’t somehow “fair” and they want someone at your company to make a magical and almost impossible call/decision on whether post-accident drug-testing is somehow fair. The problem with someone making a continuing call on whether a test is “fair” is you are almost certainly going to eventually get sued or an EEOC charge when your team rapidly decides on ever-changing evidence what might be arguably fair, as the facts roll in. There is a misperception you and all U.S. risk managers are told the whole truth and nothing but the truth when an accident happens. Anyone who has been in the business for a week or three knows all sorts of conflicting and contradictory stories come in from your work sites and making a call on whether you can safely drug test is always a challenge. In my view, the Feds in this administration could care less.

For an example, assume one of your workers claims to be stung by a wasp at work. An anonymous source is telling your managers the “sting” was actually use of a needle for prohibited drugs. Regardless of the controversy, you tell the worker they have to be drug-tested because the event is potentially a work accident. You confirm if they won’t agree to drug testing, they are going to be sanctioned or terminated consistent with your company policy. Faced with such facts, the outbound OSHA folks may side with your worker’s claim of insect sting and feel requiring post-accident drug testing in that setting will stymie or block folks from reporting accidents/exposure at work.

The thinking underlying these requirements is employees should not be somehow discouraged or punished in any way for ever exercising their right/duty under the Occupational Safety and Health Act to report a work-related injury or illness. Any adverse action taken because an employee exercises this “right to report” is viewed by the current troops at OSHA as a violation of §11(c) of the OSH Act, and as of August 10, of §1904.35(b)(1)(iv) as well. Please note the OSHA director behind this rule is leaving shortly and with him may go such views.

Although complaints brought under §11(c) of the Act must be raised by the aggrieved employee within 30 days of the adverse action, under §1904.35(b)(1)(iv), OSHA could issue citations within six months of the adverse action, and the employer would not only be issued a citation with proposed penalties, but also could be ordered to make the employee “whole,” including reinstatement with full back pay for an employee terminated as a result of a positive drug test.

Under the new regulation, a drug-testing procedure is not reasonable “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” A reporting procedure is likely to be determined by the outbound OSHA administration to be unreasonable if an injured or ill employee were required to report the injury or condition within only an hour of its occurrence or were required to report the injury or condition to so many different managers or others it would be a deterrent to reporting.

Another section separately provides an employer may not discriminate against an employee who reports an injury or illness. Although the Section cited does not expressly mention post-accident drug testing, the outbound OSHA leadership made clear in the Preamble to the new rule it believes “blanket post-injury drug testing policies deter proper reporting” and would thus be subject to OSHA citation with proposed penalties. In announcing this interpretation of the new regulation, OSHA explained they were not attempting to ban all post-accident drug testing, but would instead allow such testing if an employer conducts the testing to comply with the requirements of a state or federal law or regulation. The departing administration also stated post-accident drug testing would be permitted if there was a “reasonable possibility” drug use was a “contributing factor” in the work injury or exposure.

OSHA’s interpretation of its new reporting regulation caused widespread confusion among employers concerned they will be prohibited from conducting any post-accident drug tests or face citations and penalties. OSHA’s brain trust has not yet provided any useful formal guidance on how it will evaluate employers’ post-accident drug testing policies.

Again, Looking at the Outbound OSHA Leaders—They Hate "Blanket" Post-accident Drug Testing and Are Not Concerned If You Get Sued

The starting point in addressing the “no discrimination or retaliation” provision is OSHA focusing on a U.S. employer’s supposed motivation in implementing its post-accident drug testing policy. The new regulation has no effect on truly random drug testing. But if OSHA determined the intent of an employer’s post-accident policy was to deter or discourage the reporting of work-related injuries or illnesses, then OSHA was likely to issue a citation seeking to eliminate an employer’s continued use of such a policy. As OSHA leadership explained, a “blanket” or “automatic” post-accident or post-injury drug testing policy will, in effect, be presumed to be retaliatory and intended to deter or discourage reporting. OSHA would view as somehow questionable the required post-accident drug testing of an employee who is reporting a repetitive motion or cumulative trauma musculoskeletal condition, such as an arm or back strain, or, as we outline above the report of being randomly stung by an insect at work. Or, equally suspect in OSHA’s view would be the drug testing of an employee who is injured through no fault of his own when he is struck by another employee operating a forklift. In these types of cases, absent unusual circumstances, there is no “reasonable possibility” to believe the employee’s injury or condition arose because the employee was in any way drug-impaired.

Although “reasonable possibility” would seem to be so vague a term its meaning would be whatever OSHA interprets it to be in a given event, the outbound OSHA leaders established some parameters by reference in the Preamble discussions to insect stings and musculoskeletal disorders. In OSHA’s view, when an insect randomly stings an employee or an employee develops a musculoskeletal disorder, the employee is in no way contributing to the injury or condition. If an employee has not contributed in any way to an injury or illness, then there can be no “reasonable possibility” drugs were involved in the occurrence. In the absence of such a “reasonable possibility” of drug-related impairment or of a causal link between the employee’s action and the resulting injury or exposure, OSHA would view the required testing as primarily intended to discourage the reporting of the injury or condition or as a form of deleterious job action for being involved in the “blameless” accident or in developing a medical condition with no fault of the worker.

Please remember this means someone at your workplace in risk/safety or other management has to make the call there is something wrong or the worker is at fault—in my view, this means you are going to face lawsuits over the decision-making process.

If an employer’s motivation for having a rule requiring post-accident drug testing was for some valid reason other than discouraging employees from reporting injuries and illnesses, I believe the policy would not run afoul of the new Section. There are generally three categories that constitute valid reasons for post-accident or -injury drug testing:

(1) Drug-Free workplace policies;

(2) State workers’ compensation laws

(3) Reasonable suspicion of drug impairment.

Drug-Free Workplace Policies and State Workers’ Comp Laws/Rules Are Designed to Discourage Illicit Drug Use At Work—The Old OSHA Folks Were Okay With It

Many states have Drug-Free Workplace statutes offering employers a reduction in their insurance premiums if they adopt such testing policies. Please note the State statutes run directly afoul of the outbound OSHA administrations goals in enforcing the new Section. Although U.S. employers are not required to implement such policies, if they choose to do so to reduce their insurance premiums, they must comply with the regulations of the state statutes. Not every state’s DFWP statute has identical provisions. However, under the terms of a typical DFWP statute, to establish a legal presumption of causation by alcohol or drugs, an employee must be drug tested within hours of the event if the employee has “caused or contributed to an on-the-job injury which resulted in loss of work time.” Loss of work time is typically defined differently under a DFWP statute than under OSHA recordkeeping regulations.

In the DFWP context, an employee incurs a “loss of work time” when, as a result of the injury, an employee’s normal work is interrupted, as opposed to under OSHA recordkeeping regulations where an employee must miss an entire day from work on any day after the injury. Thus, in states with such DFWP statutory language, most work-related injuries will result in the requirement of a post-accident drug test.

If a U.S. employer conducts “blanket” post-accident drug tests consistent with the requirements of their state’s DFWP statute, the departing OSHA administration would not find a violation of the new SectionIt would be more challenging to guess what happens if an employer decides to go beyond what is required by the express language of a state DFWP statute. Although OSHA might approach these situations on a case-by-case basis, employers would seem to have a good defense because typically workers’ compensation benefits can be denied or are presumed not to be due if an employee tests positive for drugs. Thus, an employer’s motivation in requiring drug testing beyond what is literally required by the state DFWP statute could legitimately be to avoid having to pay workers’ compensation benefits as a result of positive drug test results, not to retaliate against the employee for reporting the injury.

In sum, adopting a DFWP policy in order to reduce insurance premiums is arguably not retaliatory and therefore seems permissible under the new federal Section even though employers are not literally required by state or federal law or regulation to implement drug-free workplaces. As the motivation to take advantage of state DFWP statutes is to reduce insurance premiums or workers’ compensation losses, such policies were likely to be viewed by the old OSHA administration as compliant.

In those states that do not have a DFWP statute, I believe an employer may still be free to adopt blanket post-accident drug testing if your insurance carrier or state law offers a premium reduction or other benefit for implementing the policy. Again, even though not required by state or federal statute or regulation, your motivation for adopting such a policy is to reduce insurance premiums or workers’ compensation claims, neither of which is premised on an unlawful motivation. For those employers who are simply accepting an insurance carrier’s offer in the absence of a state DFWP statute, I recommend the arrangement be in writing.

Post-accident or Injury “Reasonable Suspicion” Drug Testing

First remember “reasonable suspicion” drug testing opens your company and you to lawsuits about your decision. The prior OSHA administration could care less about you getting sued.

Even in the absence of a Drug Free Workplace post-accident or -injury policy or workers’ compensation benefit for the employer, I believe it would still be permissible to conduct “blanket” post-accident drug testing if, as OSHA states, employee drug use is “likely to have contributed to the incident.” This is an acknowledgment by OSHA that even if post-accident or -injury drug testing could conceptually have some effect on an employee’s reporting of an injury, it will be permitted under the new Section if you have a reasonable suspicion drug use contributed to the incident. The former OSHA group does not have expertise in making reasonable suspicion determinations, or more accurately, second-guessing reasonable suspicion determinations. In typical prior OSHA inspections, your compliance with OSHA requirements was based on whether your equipment or practices were compliant with OSHA Standards, and employee impairment was not typically at issue. As a consequence, absent any significant institutional knowledge or expertise on the issue, OSHA was likely to defer to the longstanding criteria and procedures developed over the years under other statutes as interpreted and enforced by other agencies, such as the Department of Transportation or the Federal Railway Administration.

“Reasonable possibility” Drug Testing

Apart from testing under a state Drug-Free Workplace statute or arrangement with an insurance carrier to implement a Drug-Free Workplace policy, or when there was reasonable suspicion to believe the reporting employee was under the influence of drugs, there are other situations in which OSHA would allow post-accident drug testing. As outlined above, when an employee was simply stung by an insect through no fault of their own or developed tendinitis/carpal tunnel performing repetitive work tasks, OSHA’s position was post-accident drug testing would probably violate the new Section. But OSHA offered a few examples in which OSHA claimed post-accident drug testing would be allowed even in the absence of reasonable suspicion.

For example, if an employee was injured as a result of failing to lock out equipment that was being serviced or an employee drove a forklift into a wall, post-accident drug testing for such cases might be allowed. Unlike an insect sting or cumulative trauma disorder where there is seemingly no connection between the injury or illness and drug impairment, impairment could be a reason the employee failed to lock out or drove the forklift into the wall. In the absence of any bright line test, it appears any employee action that leads or contributes to an injury – such as tripping and falling, hitting your thumb with a hammer– would all be considered as having a “reasonable possibility” of occurring as a result of drug impairment and thus blanket drug testing would be OSHA-approved. Again, OSHA’s focus was on prohibiting post-accident drug tests only when, like the insect sting, there was no possibility, an employee’s actions led or contributed to the resulting injury/exposure. Similarly, if an employer conducts drug tests after all failures to lock out or all forklift collisions, regardless of whether an injury results, then the employer was not retaliating against the employee for reporting an injury.

Will All of This Anti-Business Action be “Trumped?”

In my view, yes. The message from our new leader and his team is to stop regulating or “over-regulating” U.S. businesses in this fashion. We can only hope that happens but we have to take a wait and see approach. For now and the next couple of months, we are going to have to deal with the new standard that starts on December 1, 2017.

The defense team at KCB&A can assist you with a strong drug-testing policy and we defend OSHA beefs regularly at hourly rates lower than our competition.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: IL WC Reform Legislation Being Pushed to Slash Another 30% from IL WC Medical Costs and Create a “Major Contributing Cause” Standard Got a Committee “Hearing” on Its Way To Nowhere Last Monday.

IL State Rep. Jim Durkin

Editor’s Comment: The sponsor of House Bill 4248, Republican Rep. Jim Durkin, wasn’t even formally notified and could not attend the General Assembly’s legislative committee hearing due to meetings about the State budget battle. It appears clear IL House Speaker Michael Madigan was not interested in any compromises or reform for our clunky workers’ compensation system. The battle over WC reforms will continue while all sides of our General Assembly and the Governor continue brinkmanship on not having an IL State Budget.

Illinois has not had a balanced state budget in 15 years, even though there is a constitutional requirement. State government is struggling with a “stopgap” budget that expires in about three weeks Dec. 31. The State of Illinois has not had an annual spending plan since July 1, 2015.

“It was a highly unusual practice for Madigan to send the bill to committee without notifying its sponsor and was taken as a sign of bad faith by those involved,” said Michael Lucci, vice president of policy for the Illinois Policy Institute, a pro-business nonprofit. “Workers’ comp reform is still on the horizon. I would expect there might be movement and pressure out of the state Senate, where there’s more appetite for making a deal than there is in the House.”

Legislative leaders feel our WC system in Illinois needs to join the 30 other states with Medicare-based WC medical fee schedules that would pay WC hospitals and caregivers at a rate of 175% to 180% of Medicare.

A Medicare-based fee schedule appears essential to contain Illinois’ high work comp medical costs. Such a schedule may lead to more stability and predictability for actuaries, and allow WC insurers to more accurately price their WC insurance premiums.

Illinois’ WC medical costs are the highest in the region. Medical payments per 2012 claim, evaluated as of 2015, were 18% higher than the median for 18 study states, which included California, Texas, parts of the Midwest and the Southeast, the Workers Compensation Research Institute concluded in an October report.

The 2016 Oregon Workers’ Compensation Premium Rate Ranking Summary has Illinois tied for seventh with Oklahoma for the highest rates, at $2.23 per $100 of payroll.

HB 4248 also calls for the creation of a Workers’ Compensation Edit, Alignment and Reform Commission to recommend system reforms by July 1, 2017. Under Durkin’s bill, the commission would include four legislators, four claimants’ attorneys and four defense attorneys. As we have said repeatedly, this is feel-good legislation because our IWCC already has blue-ribbon panels galore that can and should be doing what this newly proposed commission might do.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Be Forewarned--Illinois Employers May Soon Be Fined for Asking Employee to “Like” or “Retweet” Employer on Facebook or other Social Media Posts. Analysis by Tracy Swenson, J.D.

Editor’s comment: According to the newly amended IL Right to Privacy in the Workplace Act, asking an employee to “like” an employer’s Facebook page or retweet company posts on Twitter is illegal. After the first of the coming year Illinois employers could be find and be found guilty of a petty offense for asking, requiring or coercing employees to use their personal online account to join their employer’s online groups. Editor’s note: Was this truly an issue for our legislative leaders in Springfield? Were they literally hundreds of folks complaining of this practice?

The IL Right to Privacy in the Workplace Act was amended in an attempt to better protect employees’ privacy. This includes preventing employers from requesting information form workers about their employees’ previously filed claims for Workers’ Compensation Act or Workers’ Occupational Diseases Act claims.

In 2013, the Right to Privacy in the Workplace Act was amended to prevent employers from requiring employees or applicants to provide social media or networking passwords and other information. As of this past summer Illinois Gov. Bruce Rauner agreed on an amendment to the Act to not only include passwords on networking sites but also usernames and personal online accounts and bars retaliation against employees by employers.

It is noted that about 20 states have enacted such laws that limit employer’s access to employees’ personal online accounts and most of these laws have been added in the last two years.

The National Labor Relations Board has had recent decisions which focus on employer’s social media policies and not that these polices should not be so sweeping they prohibit the kinds of activity protected by federal labor laws such as the discussion of wages or working conditions among employees.

Employers cannot restrain the type of information an employee can post in their own personal online accounts according to the National Labor Relations Board and now as of January 1, 2017, employers cannot request access to an employee’s personal online account or require an employee to authenticate their personal online account pursuant to the Act.

For more information or counseling on what you can and cannot do in this setting, please contact Tracy at tswenson@keefe-law.com.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Premises Liability For “Two Stone” Fall Down Claim. Analysis by Lilia Picazo, J.D.

Editor’s Comment: In Piotrowski v. Menard, Inc. (decided November 29, 2016), Claimant Piotrowski sustained injuries when she tripped and fell on two stones in Menard’s store parking lot. Piotrowski’s husband brought his own claim including loss of consortium. Plaintiffs filed suit in the Circuit Court of Cook County alleging loss of consortium and negligence. Defendant removed the case to federal court based on diversity jurisdiction. Subsequently, the District Court granted Defendant’s motion for summary judgment. This ended the case at the trial court level and Plaintiffs appealed. On appeal, the Seventh Circuit affirmed the District Court’s entry of summary judgment for Defendant.

In arguing for a reversal of summary judgment entered in favor of Defendant, Plaintiffs argued they had demonstrated genuine issues of material facts they asserted required the claim to proceed to a trial. However, the Seventh Circuit disagreed with Plaintiffs.

Under Illinois law, a Plaintiff alleging negligence must show a duty owed by defendant, a breach of that duty, and that the injury was the proximate cause of the breach.

A business can be liable for the injuries of an invitee who slips/trips on a substance on its premises if the invitee shows:

1) The substance was placed there by the negligence of the business;

2) The business had actual notice of the substance; or

3) The business had constructive notice of the substance.

It appears no one knew where the two stones being complained about came from. The parties agreed Defendant owed a duty to Plaintiff, but argued whether Defendant breached its duty by allowing the two stones to remain on its premises and whether the breach was the proximate cause of Plaintiff’s injuries.

The Seventh Court found there was no direct or circumstantial evidence to show the two stones were more likely placed by an employee of Defendant rather than a third party or force of nature. The Court indicated mere speculation an employee of Defendant Menards could have placed the stones where Plaintiff fell was not enough to survive summary judgment.

Plaintiffs also asserted Defendant was liable for Piotrowski’s injuries because it was aware of the allegedly dangerous conditions that caused her fall by refilling the area with additional stones. The Seventh Circuit found no pattern of recurring dangerous conditions reasoning Defendant’s supervisor and other employees monitored the area regularly. Therefore, no evidence was presented by Plaintiff to show the area where she fell was not attended to within a reasonable period of time.

The Court also indicated there was no evidence Plaintiff was distracted when she fell or evidence Defendant was aware of the two stones in the parking lot.

The Seventh Circuit concluded Plaintiff’s trip and fall was not enough to support in inference of negligence. In other words, Plaintiff did not support her case with enough evidence (outside of pure speculation) to get the case to a jury. Had she done so, then a trial deciding the issues would have been appropriate. However, since there was no genuine issue of material fact, the Seventh Circuit concluded the District Court did not err in granting Defendant’s motion for summary judgment.

Generally, a savvy Plaintiff will demonstrate a theory and support it factually during the discovery phase of the case to get through the potential summary judgment and to a trial. Whether it be by indicating the condition on the premises was so blatantly obvious the store/property owner cannot claim ignorance, or by adequately obtaining the necessary information to prove the property owner placed the defect or caused it to be placed there, a Plaintiff may overcome a motion for summary judgment. However, sometimes if the evidence is not there or a Plaintiff simply fails to bring forth enough evidence these types of excellent and pro-business results can occur.

This article was researched and written by Lilia Picazo, J.D. You can reach Lilia at any time for questions about commercial general liability and workers’ compensation at lpicazo@keefe-law.com.

KCBA Blog

12-5-2016; Our Spin on OSHA Post-Accident Drug Testing; IL Rep Jim Durkin Fighting for IL WC Reform Against Odds; IL Employers Can't Ask To Be 'Liked' and Two-Stone Premises Liability Ruling and More